April 7, 2016

FCC Proposes to Expand Video Description Requirements for Television Programming

Arnold & Porter Advisory

The Federal Communications Commission (FCC) recently issued a Notice of Proposed Rulemaking that proposes to expand the rules regarding the availability of video described programming.1 The FCC reinstated its video description rules in 2011 in order to provide better access to television programming for blind and visually impaired individuals, and has authority under Section 202 of the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA) to issue additional regulations if the benefits of doing so outweigh the costs. The FCC's proposed rules are limited to programming "transmitted for display on television" and do not apply to video programming distributed via the Internet.

Comments are due 20 days after date of publication in the Federal Register, and Reply Comments are due 30 days after the date of publication. At the time of posting, publication in the Federal Register had not yet occurred.

Increased Availability of Video Described Programming

The FCC proposes to "increase the quarterly requirement for video described programming" from 50 hours to 87.5 hours, and to increase the number of networks required to provide video described programming from a total of nine (four broadcast and five non-broadcast) to fifteen (five broadcast and ten non-broadcast).

Hours Per Included Network. The FCC reads the CVAA as authorizing an increase in the number of video described hours per network from 50 up to 87.5 hours per quarter. Noting that consumers are interested in increased video described programming, the FCC proposes moving to the maximum number of hours given the "extensive benefits and reasonable cost" of providing video described programming.

The FCC seeks comment on the additional questions of whether to allow some amount of non-prime time, non-children's programming to count toward the increased requirement, and whether to count programming run outside of the 6 a.m. to midnight time frame.

Covered Networks. The FCC proposes to extend the video description requirements to additional networks. The requirements currently apply when a covered broadcast network carries ABC, CBS, Fox, or NBC programming or when a covered Multichannel Video Programming Distributor (MVPD) carries one of five popular non-broadcast networks. 2

The FCC now proposes to cover "any commercial television broadcast station that (i) is affiliated with ABC, CBS, Fox, and NBC or with any other of the top five commercial broadcast networks, and (ii) is located in the top 60 television markets." The additional broadcast network included in the "top five" will be determined triennially based on television ratings.

The FCC further proposes that MVPD systems with 50,000 or more subscribers be required to provide 87.5 hours of video described programming per quarter on every channel "on which they carry one of the top ten national non-broadcast networks." The FCC seeks comment on whether to include "more, or fewer" additional networks and asks for "justifications for any specific change to the number." The FCC also seeks comment on alternative approaches to determining what networks should be included as covered networks, as well as how best to initially determine covered networks given the existing cycle of television ratings determinations.

Other Changes. The FCC proposes to include a "no-backsliding requirement" under which a network will remain a covered network even if it falls out of the top five or top ten at some point. In addition, the FCC proposes to eliminate the current "50 percent threshold" exemption, under which MVPDs are not required to provide video described programming on any network programs if they are not available in 50 percent or more of MVPD homes. The FCC also seeks comment on the appropriate effective date of the new rules.

Improving Consumer Access to Video Description

Programming Guide Information. The FCC's 2014 Report to Congress on the implementation of the CVAA3 included reports of "significant consumer dissatisfaction" with the availability of consumer information about video described programming. In the 2014 Report, the FCC urged voluntary action to resolve these concerns, and now seeks comment on the state of current programming guide services, as well as the benefits and drawbacks of providing a central listing of video described programming.

Dedicated Customer Service Contacts. The 2014 Report also noted consumer frustration with MVPD customer service when seeking information regarding video described programming. The FCC now proposes requiring covered distributors to provide "dedicated customer service contacts" to assist with consumer questions. After urging voluntary action to resolve this issue in its 2014 Report, the FCC has "tentatively concluded" that the benefit of such a requirement would exceed costs, but seeks comment on its tentative conclusion and its proposal that distributers notify publishers of programming guides when programs are video described.

  1. In re Video Description: Implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010, Notice of Proposed Rulemaking, MB Docket 11-13, (rel. Apr. 1, 2016). Video description makes video programming accessible to blind or visually impaired individuals through insertion of audio narrated descriptions of a television program's key visual elements into natural pauses in the program's dialogue.

  2. USA, TNT, TBS, History, and Discovery Channel are the non-broadcast networks currently subject to the FCC's video description requirements. Id. at ¶ 5.

  3. Video Description: Implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010, Report to Congress, 29 FCC Rcd 8011 (2014).

Subscribe Link

Email Disclaimer